Hart v. Wilson

2 Wend. 513

• Court: New York Supreme Court
• Decided: May 15, 1829
• Status: Published

Opinion

By the Court, Sutherland, J.

Regular notice to the defendant of non-payment of the note by the maker is clearly established by the testimony of Ransom and Tracy, and the written memorandum to which they were properly permitted to refer. They prove not only that notice was sent on the day when it ought to have been given, but they shew the manner in which it was given. It was sent by mail, directed to the defendants respectively, at the nearest post office to each. The note fell due in September, 1818, and it would be impossible after such a lapse of time to prove all the particulars necessary to establish a legal notice, without the aid of a written memorandum made at the time when the services were performed. The memorandum on the back of the note, of the demand, protest and notice signed by the notary, when taken in connection with the other evidence in the case, leaves no reasonable doubt as to the demand and notice. Halliday v. Martinett, (20 Johns. R. 168,) and Welch v. Bennet, (15 Mass. R. 380,) are precisely in point. It is equally clear the note was usurious. The testimony of Clark and Coffin, who were clerks in the bank when the note was discounted, establish beyond all question that the interest was computed upon the principle of 360 days to the year, and that such was the uniform practice of the bank : this is sufficienfto make out a case of usury.

Judgment for defendant.